U.S. ENVIRONMENTAL PROTECTION AGENCY S POLICY TO MITIGATE THE ACUTE RISK TO BEES FROM PESTICIDE PRODUCTS

U.S. ENVIRONMENTAL PROTECTION AGENCY S POLICY TO MITIGATE THE ACUTE RISK TO BEES FROM PESTICIDE PRODUCTS U.S. Environmental Protection Agency Office of Pesticide Programs January 12, 2017

DISCLAIMER This policy represents the EPA's recommended labeling statements to mitigate acute risks to bees from pesticide products. This policy is not a regulation or an order and, therefore, does not legally compel changes to pesticide product registrations. Absent voluntary action from pesticide registrants to adopt the labeling language recommended in this policy, the EPA can only compel changes to pesticide product labeling through the procedures specified in the Federal Insecticide, Fungicide and Rodenticide Act. Accordingly, this document is not intended, nor can it be relied on, to create any obligations or rights enforceable by any party in litigation with the United States. The EPA may decide to follow the policy provided in this document, or to act at variance with the policy, based on analysis of specific circumstances when reviewing specific pesticide products. 1

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Contents 1 Executive Summary... 4 2 Background... 8 3 Label restriction for applications to crops with bees present under contract for pollination services.. 9 3.1 Scope and Criteria for Acute Risk Mitigation Language... 9 3.2 Using EPA s Tier 1 Acute Risk Assessment as a Criterion to Determine Pesticide Products with Potential Acute Risk to Bees... 11 3.3 Flexibility in the Acute Risk Mitigation Policy... 13 3.3.1 Applications with Products of Low Residual Toxicity... 13 3.3.2 Analysis of Impacts and Flexibility for Applications to Certain Crop Types... 16 3.3.3 Applications to Protect Public Health... 20 4. Label Language Description... 21 4.1 Defining Terms of the Mitigation Language... 21 4.1.2 Characterizing the Terms Onset of Flowering and Until Flowering is Complete... 22 4.1.3 Characterizing When Contracted Bees are On Site... 23 4.1.4 Characterizing Bees Under Contract... 23 5 Modifications to the Environmental Hazards Section of Pesticide Labels... 24 6 State and Tribal (Managed) Pollinator Protection Plans... 26 7 Implementation... 27 Appendix A... 30 List of Group 1 Active Ingredients, Acute Toxicity Value, and Threshold Application Rate... 30 Appendix B... 32 List of Crops for which Contracted Bees May Be Used*... 32 Appendix C... 33 3

1 Executive Summary On May 29, 2015, the U.S. Environmental Protection Agency (EPA) published its Proposal to Mitigate Exposure to Bees from Acutely Toxic Pesticide Products (hereafter referred to as the Proposed Acute Risk Mitigation Strategy). In the Proposed Acute Risk Mitigation Strategy, the EPA described additional pesticide label restrictions to protect managed bees under contract pollination services from foliar applications of pesticides that are acutely toxic to bees on a contact exposure basis 1. The proposed restrictions would prohibit applications of pesticide products that are acutely toxic to bees, during bloom where honey bees (Apis mellifera) are known to be present under contract for pollination services. The EPA also encouraged the efforts by states and tribes to reduce pesticide exposures through development of locally-based measures, such as through Managed Pollinator Protection Plans (MP3s). The EPA requested comment on the label restrictions, MP3s, and areas of uncertainty described in the proposal. The EPA received and reviewed numerous comments submitted on the Proposed Acute Risk Mitigation Strategy and also conducted an analysis of potential impacts to growers. Based upon public comments and its analysis, the EPA has made modifications to its approach with the goal of better targeting compounds that pose an acute risk, and with the goal of reducing potential impact of this effort on growers. The EPA is now finalizing its approach to mitigate acute risk to bees. In general, the EPA will use its Tier 1 acute risk assessment to, in part, determine the products that trigger concerns about pollinator risk that the label restrictions are intended to address. The EPA s Tier 1 acute risk assessment is a quantitative analysis that relies upon conservative exposure values and chemical specific hazard information (the adult acute contact LD50 in this case) to estimate risk. Using the Tier 1 acute risk assessment methodology will more accurately identify, through a quantitative process, compounds of potential acute risk to bees. Recognizing that some pesticides may have a demonstrated low residual toxicity and that certain crops that have extended blooming periods, EPA has developed some exceptions to the label restrictions intended to allow greater flexibility in these instances but still provide protection for bees. In this document, Policy to Mitigate the Acute Risk to Bees from Pesticide Products (hereafter referred to, as the Policy), the EPA provides an exception for products with short residual toxicity times to allow for their use during hours that will reduce the likelihood of acute effects from exposure to residues of these products. This Policy also provides an exception for crops with extended bloom periods to allow applications during hours when bees are less likely to be foraging in order to ensure that acute risk to pollinators is reduced while providing options for grower to meet their pest management needs. The EPA continues to support the development of managed pollinator protection plans (MP3s) by states and tribal nations. The EPA will continue to monitor the progress and effectiveness of MP3s and other Pollinator Protection Plans in reducing pesticide exposure to bees. The EPA has 1 Acutely toxic is defined as a pesticide with a 48 96-hr median lethal contact dose to 50% of the bees tested (LD 50 ) of less than 11 micrograms per bee (LD 50 <11 µg/bee). 4

established a workgroup under its Pesticide Program Dialogue Committee (PPDC) 2 to develop performance metrics to gauge the efficacy of MP3s. This Policy describes the EPA s approach to mitigate acute risk from pesticides to bees. A summary of the Policy is presented below. The EPA will generally use its Tier 1 3 acute risk assessment process as a means to identify pesticide products and specific labeled uses which fall within the scope of this Policy. The EPA will generally use the honey bee acute risk level of concern (LOC) based on contact exposure of 0.4 4 (risk quotient (RQ) >0.4) to determine whether a product application rate falls within the scope of this Policy. The following are used to determine the applicability of this Policy for uses of pesticide products: (1) liquid or dust formulations as applied; (2) outdoor foliar application on agricultural crop(s) that may utilize contract pollination services; and, (3) maximum application rate(s). See Appendix C for a list of crops that may utilize contract pollination services 5. The EPA generally intends that the labels for all products applied as either a liquid or dust, with outdoor foliar use(s) on crops that may utilize commercial pollination services at application rates that result in acute contact RQs that exceed the acute risk LOC of 0.4 for bees, be amended to include the acute risk mitigation restriction as follows: FOR FOLIAR APPLICATIONS OF THIS PRODUCT TO A CROP WHERE BEES ARE UNDER CONTRACT TO POLLINATE THAT CROP: Foliar application of this product is prohibited to a crop from onset of flowering until flowering is complete when bees are under contract for pollination services to that crop unless the application is made to prevent or control a threat to public and/or 2 The Pesticide Program Dialogue Committee is an EPA Federal Advisory Committee Act (FACA) group of EPA s Office of Pesticide Programs. 3 For more information on EPA s Tier I acute risk analysis, please see, EPA s Guidance for Assessing Pesticide Risks to Bees 4 The acute risk level of concern (LOC) is exceeded when the ratio (referred to as the risk quotient [RQ]) of exposure dose to the LD 50 value exceeds 0.4. (the exposure level at which 50% of exposed bees die) exceeds 0.4. In other words, when bees may be exposed to a pesticide at or above a level that is 40% of the dose that caused one half of bees to die in relevant acute toxicology studies, EPA believes such exposures present a risk of concern and it evaluates the need for additional risk mitigation. Additional information on acute risk LOC for bees can also be found in EPA s Guidance for Assessing Pesticide Risks to Bees, see: https://www.epa.gov/sites/production/files/2014-06/documents/pollinator_risk_assessment_guidance_06_19_14.pdf 5 EPA uses multiple lines of information to understand the potential for a crop to rely upon, or be attractive to bees, and therefore may utilize commercial pollination services including the USDA document, Attractiveness of Agricultural Crops to Pollinating Bees for the Collection of Nectar and/or Pollen. 5

animal health as determined by a state, tribal, authorized local health department or vector control agency. In order to increase flexibility for growers to meet their pest control needs while still protecting bees, the EPA will generally allow the acute risk mitigation restriction (above) to be amended for products subject to this Policy, if product-specific toxicity of residues on foliage data (OCSPP 850.3030) 6 are submitted, found acceptable, and indicate a residue toxicity (RT25) 7 time of 6 hours or less (RT25 <6 hrs.). In these situations, the EPA believes that it is generally appropriate to amend the acute risk mitigation restriction to the following: FOR FOLIAR APPLICATIONS OF THIS PRODUCT TO A CROP WHERE BEES ARE UNDER CONTRACT TO POLLINATE THAT CROP: This product has been determined to have a short residual toxicity (RT25) time. Foliar application of this product is prohibited to a crop from onset of flowering until flowering is complete when bees are under contract for pollination services to that crop unless: (i) (ii) The application is made to prevent or control a threat to public and/or animal health as determined by a state, tribal, authorized local health department or vector control agency; OR, The application is made in the time period between 2-hours prior to sunset and 8 hours prior to sunrise. Based upon its analysis examining the potential economic impacts of the acute risk mitigation measures, Impact Estimates from Proposed and Revised Pollinator Labeling for Representative Blooming Agricultural Crops Utilizing Commercial Pollination Services, (USEPA, January 2017), the EPA will generally permit modification of the label restriction for crops that utilize commercial pollination services and have an indeterminate 8 blooming period. Pesticide applications to such crops may be made during specified time windows or under certain temperatures conditions. The indeterminate blooming crops for which the modification to the acute risk mitigation language applies are identified in Appendix C and includes but is not limited to crop such as: o Crops grown for seed, such as groundcovers, forages, oilseed, and fruit/vegetable crops. o Strawberries 6 USEPA 2012. Ecological Effects Test Guidelines OCSPP 850.3030: Honey Bee Toxicity of Residues on Foliage. Office of Chemical Safety and Pollution Prevention (7101). EPA 712-C-018. January 2012. 7 The RT 25 is defined as the exposure time required to result in 25% mortality to bees exposed via contact to weathered residues on foliage. 8 EPA uses the term indeterminate bloom to indicate crops that bloom either continuously or intermittently for multiple weeks and/or for most of the crop s growing season that bloom for longer than four consecutive weeks. 6

o Cucurbits (such as melons, cucumbers, squash, pumpkins) o Oilseed crops (including sunflower) o Avocado If the stated criteria of this Policy are met, and the use of the subject product is to one of the crops listed above, the EPA believes that it is generally appropriate to amend the acute risk mitigation restriction to the following: FOR FOLIAR APPLICATIONS OF THIS PRODUCT TO A CROP WHERE BEES ARE UNDER CONTRACT TO POLLINATE THAT CROP: Foliar application of this product is prohibited to a crop from onset of flowering until flowering is complete when bees are under contract for pollination services to that crop unless: (i) (ii) (iii) the application is being made to prevent or control a threat to public and/or animal health as determined by a state, tribal, authorized local health department or vector control agency; OR, the application is being made in the time period between 2-hours prior to sunset until sunrise; OR, the application is being made at a time when the temperature at the application site is 50 o F or less. This Policy provides a brief discussion of several of the key terms of the acute risk mitigation restriction. To implement this Policy, the EPA has identified the active ingredients for which there are products that (i) are applied as either a liquid or a dust; and (ii) have foliar applications to an agricultural site that may utilize managed bees for contract pollination services. Because this list is large, the EPA intends to issue this list in three groups. Appendix A to this Policy identifies the Group 1 active ingredients that are subject to this Policy, and identifies the application rate for each of those active ingredients above which the Tier 1 acute risk LOC is exceeded. Environmental Hazards Language for Pollinating Insects. The EPA did not discuss environmental hazards language in its Proposed Acute Risk Mitigation Strategy. However, considering comments the EPA has received in the past and in response to the Proposed Acute Risk Mitigation Strategy, to ensure that labels being revised pursuant to this Policy are clear and consistent, the EPA is modifying the environmental hazards language pertaining to non-target organisms 9. The EPA intends that product labels submitted in accordance with this Policy are also revised to reflect updated Environmental Hazards - pollinating insect hazards language. The EPA will update its 9 See Chapter 8 of the EPA Label Review Manual 7

Label Review manual and will implement this new language, through both its registration and registration review programs: Environmental Hazards Language for Pollinating Insects. This product is [moderately/highly] toxic to bees and other pollinating insects exposed to direct treatment, or to residues in/on blooming crops or weeds. Protect pollinating insects by following label directions intended to minimize drift and to reduce risk to these organisms. For other pesticide exposure scenarios where bees are within the forage area or pollinating adjacent crops, the EPA will continue to monitor the progress and effectiveness of MP3s and other Pollinator Protection Plans in reducing pesticide exposure to bees. 2 Background On May 29, 2015, the EPA published its Proposed Acute Risk Mitigation Strategy. In that notice, the EPA proposed label language that would prohibit foliar applications of liquid or dust formulations of moderately to highly toxic pesticides, where the acute contact LD50 10 is less than 11 micrograms per bee (LD50 <11 µg ai/bee), during bloom for sites with bees onsite under contract, unless the application is made in accordance with a government-declared public health response. Additionally, the proposal encouraged the development of MP3s by states and tribes to foster communication between growers/applicators and beekeepers to further reduce the likelihood of exposure for all other uses. The EPA requested comment on the proposed label restrictions, MP3s, and areas of uncertainty described in the Proposed Acute Risk Mitigation Strategy. The EPA received roughly 113,000 responses following a 90-day comment period, which closed on August 28, 2015. In drafting the final policy to mitigate acute risk to bees, the EPA has considered public comments it received and other lines of information, including its economic impacts analysis, Impact Estimates from Proposed and Revised Pollinator Labeling for Representative Blooming Agricultural Crops Utilizing Commercial Pollination Services (USEPA, January 2017). The EPA s impact analysis considers comments in response to the Proposed Acute Risk Mitigation Strategy, and also contains information and analysis on some crops for which public comments were not received. The Policy reflects input from public comments, but does not include a discussion of all the comments it received. For a discussion of all comments and the EPA s response please see, Response to Public Comments Submitted on The Environmental Protection Agency s Proposal to Mitigate Exposure to Bees from Acutely 10 LD 50 is the median lethal dose of a product to 50% of the adult bees tested. 8

Toxic Pesticide Products. EPA is now presenting its final Policy to Mitigate Exposure to Bees from Acute Risk from Pesticide Products. 3 Label restriction for applications to crops with bees present under contract for pollination services Based on the comments received and the impact assessment, EPA has revised the language of the acute risk mitigation restriction and the criteria that trigger this restriction. The revised language is intended to be clearer, and the revised criteria are intended to reduce the potential economic costs to growers from this Policy. EPA has also developed alternative label language in order to provide greater flexibility for growers to protect crops while mitigating acute risk to bees for certain pesticides or crops. The EPA believes that through this Policy pesticide exposure to bees under the conditions most likely to lead to acute risk will be reduced. The EPA believes that the adjustments made to the proposal that are contained in this final Policy will reduce potential economic impact from these efforts. While the mitigation outlined in this policy focuses on managed bees under contract pollination services, EPA believes that in protecting managed bees, these measures would also protect native solitary and social bees that are also in and around treatment areas. This Policy, as well as EPA s support for development of state and tribal MP 3 s, is consistent with the President s directive and the National Strategy to Promote the Health of Honey Bees and Other Pollinators 11, which addresses the multiple factors affecting honey bees and pollinator health. 3.1 Scope and Criteria for Acute Risk Mitigation Language This Policy generally applies to all products (Section 3, 24(c) Special Local Need registrations and where applicable, Section 18 emergency exemption petitions 12 ) that meet all of the following criteria: (1) liquid or dust formulations as applied; and (2) outdoor foliar use directions on agricultural crop(s) that may utilize contract pollination services 13 ; and, 11 See: https://www.whitehouse.gov/sites/default/files/microsites/ostp/pollinator%20health%20strategy%202015.pdf 12 Depending on the nature of the emergency for which a Section 18 petition has been submitted, the at-bloom restriction may not apply. This determination will be made on a case-by-case basis. 13 EPA may use multiple lines of information, including the USDA document, Attractiveness of Agricultural Crops to Pollinating Bees for the Collection of Nectar and/or Pollen, to determine whether a labeled use site may or may not utilize contract pollination services. The USDA list of pollinator-attractive crops is built upon an effort that 9

(3) maximum application rate(s) that result in risk estimates that exceed the acute risk LOC for bees of 0.4 (based on contact exposure). For this Policy, the EPA has identified the active ingredients for which there are products that (i) are applied as either a liquid or a dust; and (ii) have foliar applications on agricultural crops that may utilize contract pollination services. Because this list of compound is long, and to help manage the work of amending pesticide labels the EPA has divided this list into t three groups. For each active ingredient in Group 1, the EPA has identified the application rate above which the Tier 1 acute risk LOC is exceeded. The acute risk LOC of 0.4 is based on the maximum label application rate (as discussed in EPA s Guidance for Assessing Pesticide Risk to Bees ) and the chemical-specific acute contact toxicity value (i.e., LD50). The acute risk LOC analysis for Group 1 conventional active ingredients used in support of this Policy is presented in Appendix A. In the future, as it continues to implement this Policy, the EPA will identify the active ingredients of Group 2 and Group 3. The label restrictions outlined in this Policy would not replace more restrictive chemicalspecific, bee-protective provisions (e.g., pre-bloom restrictions) that may already be included on a product label. For example, based on a chemical-specific assessment, the EPA may have determined that the residues of a pesticide measured in pollen and nectar warrant that an application be prohibited for a crop or crops for a period of time prior to bloom (i.e., a pre-bloom restriction) in addition to prohibitions during bloom, to mitigate the potential risk to bees. The EPA generally intends to carry out this Policy by seeking to have pesticide registrants with products that meet the three criterion identified in this Policy submit revised labels. EPA will review all labels and make a determination, on a case-by-case basis, whether the acute risk mitigation restriction is needed or not for that label and whether, in cases where specific pollinator-protection language exists on a label (i.e., pollinator protection language predicated on a chemical-specific risk assessment), such language should be retained in favor of the label language outlined in this policy. In this Policy, the EPA refers to honey bees as the bee most associated with commercial pollination services. However, the EPA is aware that other species, such as the orchard mason bee (Osmia lignaria), the leafcutter bee (Megachile rotundata), and the bumble bee (Bombus impatiens), may also be employed for contracted pollination services. This Policy applies to any bee species that is contracted for pollination services. The EPA s intent of this Policy is to protect bees that provide pollination services from acute risks of pesticide products. The EPA intends that through chemical-specific analyses, and not this Policy, it will assess other potential pesticide risks to bees (such as chronic risk through the dietary route of exposure). The EPA will conduct comprehensive chemical-specific risk was initially developed by the European Food Safety Administration (EFSA) as an Appendix to their Guidance Document on the Risk Assessment of Plant Protection Products on Bees (Apis mellifers, Bombus spp. and solitary bees) 10

assessments and take appropriate action to mitigate risks through the registration and registration review programs based on the best available science. In this Policy, the EPA has identified measures intended to allow flexibility so growers protect bees from acute contact risks while meeting their pest management needs. As in the past, the EPA is open to, and will work with stakeholders to identify or develop other options that mitigate potential risks from pesticide products while maintaining these tools in order to protect crops. 3.2 Using EPA s Tier 1 Acute Risk Assessment as a Criterion to Determine Pesticide Products with Potential Acute Risk to Bees In the proposal, one of the criteria for determining whether a pesticide product would be subject to the Policy was its hazard classification as either highly or moderately toxic to bees based on acute contact exposure, i.e., those pesticides with an LD50 <11 µg/bee, based on either the acute contact toxicity test following OCSPP Guideline 850.3020 or its equivalent test in Europe (i.e., OECD 214 14 ). During the public comment period, the EPA received a number of comments regarding the use of hazard category (of a compound) as one of three criteria to identify which pesticide compounds would or would not be subject to the acute risk mitigation restrictions (i.e., whether or not an active ingredient has an acute contact LD50 <11 µg/bee). A number of commenters argued that the EPA based its proposed action on hazard (i.e., toxicity) rather than a quantified risk approach, where both hazard and exposure are taken into consideration, and noted that such an approach would be inconsistent with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which is a risk-based statute. These commenters therefore urged the EPA to consider a quantitative risk-based approach that considered both hazard and exposure. While the proposed approach did not involve a quantitative risk analysis, it did consider both hazard (i.e., active ingredients that are acutely toxic) and exposure as the proposed approach applied to use scenarios where exposure to managed bees is almost certain since large numbers of bees are intentionally brought into the application site. Nonetheless, the EPA recognizes the merits of this comment. A more quantitative risk-based approach could more accurately target risk by capturing risk scenarios which may have been missed by the EPA s initial proposal (e.g., for an active ingredient that is of low toxicity but high application rate) and by not presuming risk where it may not exist (e.g., for an active ingredient of high toxicity but low application rate). The EPA agrees that a quantitative risk-based approach would be more consistent with its intent by better targeting pollinator protection while minimizing impacts on growers to protect crops. Therefore, for this Policy, the EPA will use its Tier 1 acute risk LOC as one of the criteria for applicability of this Policy to a pesticide product. The EPA will identify a threshold application rate above which the acute risk mitigation label restriction, identified in this Policy, will 14 Organization for Economic Cooperation and Development (OECD) 1998. OECD Guidelines for the Testing of Chemicals. Test Number 214, Acute Contact Toxicity Test. 11

generally apply. The EPA s Tier 1 acute risk assessment process relies on chemical-specific adult honey bee acute contact toxicity data (LD50 data) and conservative contact exposure estimates for foliar applications. The EPA relied upon its Tier 1 acute contact risk assessment approach to determine the threshold application rate for each active ingredient, applied either as a liquid or dust, that includes foliar application instructions for use on an agricultural crop that may utilize contract pollination services. Discussion of the Tier 1 exposure assumptions can be found in the EPA s EPA s Guidance for Assessing Pesticide Risks to Bees. Since this revised approach (using the Tier 1 acute risk assessment) more accurately reflects potential risk based on both hazard and quantified exposure, the Policy is no longer limited in scope to just those conventional pesticide products that are highly toxic and moderately toxic. Rather, the Policy applies to all conventional pesticide active ingredients that are applied as either a liquid or a dust and that are foliar applied to a crop that may utilize commercial pollination services. This is because an active ingredient of low acute contact toxicity may be applied at an application rate that results in an estimated acute RQ greater than 0.4, and conversely, an active ingredient of high acute contact toxicity may be applied at a rate that results in an estimated acute RQ less than 0.4. Based upon chemical-specific adult honey bee acute contact toxicity data and the EPA s Tier 1 default exposure assumptions, a maximum application rate for each conventional pesticide active ingredient will be identified, above which the Tier 1 acute risk estimate would exceed the acute LOC of 0.4 for adult bees. Therefore, labeled use(s) of a pesticide product to a crop that may use bees under contract for pollination, at a rate above the identified threshold would exceed the EPA s acute risk threshold of 0.4 are subject to the acute risk mitigation language identified in this Policy (below). See Appendix A for the threshold analysis and inputs to that analysis, and see Appendix B for a list of crop groups and example crops that may use bees under contract for pollination. The Acute Risk Mitigation Label Language: The EPA intends that all labels for products that (1) are applied as either a liquid or a dust; (2) are foliar applied outdoors to agricultural crop(s) that may utilize contract pollination services; and (3) have an application rate(s) that result in risk estimates exceeding the acute risk LOC of 0.4 for bees, be amended to reflect the acute risk mitigation language below. FOR FOLIAR APPLICATIONS OF THIS PRODUCT TO A CROP WHERE BEES ARE UNDER CONTRACT TO POLLINATE THAT CROP: Foliar application of this product is prohibited to a crop from onset of flowering until flowering is complete when bees are under contract for pollination services to that crop unless the application is made to prevent or control a threat to public and/or animal health as determined by a state, tribal, authorized local health department or vector control agency. 12

3.3 Flexibility in the Acute Risk Mitigation Policy In the EPA s Proposed Acute Risk Mitigation Strategy, the only exception included in the acute risk mitigation language was for the application of a product under a government-declared public health response. During the comment period, a number of comments were received from a wide range of stakeholders, including both beekeepers and growers, urging the EPA to provide greater flexibility in the strategy. It is the EPA s goal to mitigate acute risk to bees while limiting impacts to agriculture in terms of either decreased yields or increased production costs, where appropriate. Therefore, in consideration of comments received and to better account for the variability in pollinator risks and impacts on crop production, the EPA has revised its approach to be more flexible by providing specific exceptions to the acute risk mitigation label restriction. In addition to the exception for applications for public health, the EPA has identified two types of exceptions to the label restriction that it believes will still mitigate potential exposure to bees while providing flexibility to growers. One type of exception is product-based and is predicated on acceptable residual toxicity time (RT25) that is short. The second type of exception is predicated on the use site to which an active ingredient is being applied. The specific exceptions are discussed below. 3.3.1 Applications with Products of Low Residual Toxicity A number of comments were received, from both beekeepers and growers, regarding the use of residual toxicity information to help identify pesticides that could be used during bloom and not pose a significant risk to bees. Residual toxicity data are generated through the Toxicity of Residues on Foliage Test (OCSPP Guideline 850.3030 15 ) and are referred to as RT25 data. The RT25 is the time needed to reduce the toxicity of a pesticide product s residues and to bring mortality down to 25 percent (25%) for adult bees exposed by contact to field-weathered residues on the surfaces of the treated plants. The RT25 is intended to be a measure of the time that the pesticide product is expected to remain toxic to bees in the field when bees are exposed to residues on plants treated at a specific application rate. Based on the EPA s regulations for requiring data related to impacts on non-target organisms (40 CFR 158.630), the EPA has typically determined whether RT25 data are needed based on the results of acute contact toxicity test (OCSPP Guideline 850.3020 16 ) with young adult bees; the toxicity of residues on foliage study is triggered if the median lethal dose to 50% of the bees tested (LD50) is less than eleven micrograms per bee (<11 μg/bee). 15 USEPA 2012. Ecological Effects Test Guidelines OCSPP 850.3030: Honey Bee Toxicity of Residues on Foliage. Office of Chemical Safety and Pollution Prevention (7101). EPA 712-C-018. January 2012. 16 USEPA. 2012. Ecological Effects Test Guidelines OCSPP 850.3020: Honey Bee Acute Contact Toxicity Test. Office of Chemical Safety and Pollution Prevention (7101). EPA-712-C-019. January 2012. 13

Commenters to the Proposed Acute Risk Mitigation Strategy indicated that RT25 information is useful to growers and beekeepers as it can help guide their product selection by informing them on which product(s) may have less toxicity to bees on an acute exposure basis if the product was applied after dusk. In 2012, the potential utility of these data were previously suggested by the Pesticide Program Dialogue Committee (PPDC) Workgroup on Pollinator Protection 17. In response to recommendations by the PPDC Workgroup to make RT25 data more available for growers and beekeepers, EPA posted the RT25 values from available accepted studies to an online database. During the review process of these studies, the EPA noted that RT25 values vary between formulated products of the same pesticide active ingredient and do not appear to be correlated with chemical/physical characteristics of the pesticide active ingredient. It is likely that since the weathering component of the test is performed outdoors, environmental conditions and inert ingredients within formulated products may affect the length of time residues remain toxic to bees. As a consequence, an RT25 value for one formulation may vary, and further, may not be representative of another formulation of the same pesticide active ingredient. The EPA agrees that the use of a pesticide product with a low RT25 could mitigate the acute contact risk to bees if the pesticide is applied within sufficient time to allow the residues to dry/dissipate before bees forage on that crop. As such, the EPA understands that RT25 data can represent a valuable tool for both beekeepers and growers, and therefore, EPA is incorporating flexibility in the Policy around RT25 data. In developing an RT25 option, the EPA considered what a RT25 value would be such that a product could be applied and sufficient time remained after the application so that residues could dry before bees were likely to forage on that crop. Based both on empirical information and anecdotal comments from beekeepers, forage activity of honey bees increases with daylight and temperature 22. Therefore, the window for use of a product with a low RT25 value would generally be the time between sunset and sunrise at a use site. Commenters to the Proposed Acute Risk Mitigation Strategy, including beekeepers, growers, and state lead agencies suggested that a product with an 8-hour RT25 value [or less] could be used safely during certain hours after primary foraging activity decreases. If the EPA only permitted applications after sunset, then a short period of daylight would exist before applicators would be compelled to make applications in the dark. However, the EPA has learned from various commodity groups and from aerial applicators that, depending upon the topography and other variables, night-time applications (particularly aerial applications) are not possible at all sites and may present safety issues for applicators. To work around this limitation for safe application, the EPA reasons that a longer application window (around dusk) would increase benefits to growers and applicators by providing more daylight hours during which to make an application, but not greatly reduce protection for bees (as bees generally return to the colony as the sun begins to set). Therefore, in creating flexibility around the RT25 data, the EPA 17 See: https://www.epa.gov/sites/production/files/2014-05/documents/next-steps-pp-nov-2012.pdf, and https://www.epa.gov/sites/production/files/2014-05/documents/session8-pollinator.pdf 14

will generally lengthen the application window by adding 2 hours, prior to sunset, when bee foraging activity is reduced. As discussed above, the EPA is also concerned about the potential variability that may be inherent in RT25 values. Depending upon the location, such as northern tier states, the time between sunset and sunrise may be short at certain times of the year, (even less than 8 hours). Such a short time between sunset and sunrise leaves little time for an application to be made and for residues to dry prior to sunrise. In addition to the 2-hour pre-sunset interval discussed above, the EPA reasons that having a differential between the RT25 value and the amount of time allotted for residues to dry would provide a margin of time to account for potential variability in an RT25 value. For example, if a product with an RT25 value of 6 hours was applied 8 hours prior to sunrise, then an additional two hours would be available to account for any site-specific variability that may cause the RT25 to be greater than the recorded 6-hour value. In this case, the 2-hour differential between the RT25 value and the amount of time required for the residues to dry provides greater protection for bees. The EPA considered whether the application window for products should vary product-byproduct based upon specific RT25 values; for example, a product with an RT25 of 4 hours could perhaps be applied 2-hours prior to sunset, but not less than 6 hours (rather than 8 hours) prior to sunrise. The EPA does not believe that trying to fine tune this exception, or using the data to comparatively (i.e., one product is safer than another) is supported by RT25 data. The EPA believes that products with an RT25 equal to or less than 6 hours, applied 2-hours prior to sunset but not less than 8 hours prior to sunrise, is consistent with this Policy by mitigating potential risk to bees, while providing flexibility for growers to protect crops. Consequently, at this time the EPA intends to generally treat consistently all products with an RT25 equal to or less than 6 hours. The EPA believes that, in general, a product with an RT25 value of 6 hours or less (RT25 <6 hrs.) could be used during bloom in a manner that is consistent with the intent of this Policy by mitigating acute risk to bees but allowing flexibility for growers. With the provision for an application window that starts 2-hour prior to sunset, and the provision for a 2-hour differential between the RT25 value and the amount of time required for residues to dry, the EPA believes it can: (i) create a wider window for applications to be made prior to night-time for all application methods; (ii) provide options for safer aerial applications to be made, (iii) provide more time for pesticide residues to dry prior to sunrise when bee activity may begin at a target site; and, (iv) provide a margin of protection (for bees) by accounting for any variability (in the RT25) that may arise due to site-to-site conditions. To ensure that RT25 data can be relied upon by the EPA, growers and beekeepers to reasonably reduce the likelihood of pesticide exposure, the test design used to generate RT25 data must be reviewed to ensure the reliability and predictive nature of RT25 data across active ingredients and formulations. Therefore, the EPA will work with stakeholders to enhance the RT25 study methods and ensure that RT25 values are suitably predictive for acutely toxic products used at bloom on pollinator-attractive crops. Through such efforts, the EPA hopes to address the uncertainty regarding the extent to which the RT25 value can be extrapolated across formulations 15

and environmental conditions. With the availability of suitable RT25 information on a product, the EPA believes that in general, the proper use of such a product with a low RT25 value would mitigate acute risk to bees. Therefore, if acceptable product-specific toxicity of residues on foliage data (OCSPP 850.3030 18 ) are submitted and indicate an RT25 value of 6 hours or less (RT25 <6 hrs.), then the EPA will generally allow the acute risk mitigation language to be amended to indicate that the subject product may be applied during bloom if it is applied between 2-hours prior to sunset but not less than 8 hours prior to sunrise at the application site. With respect to existing data, the EPA will determine, on a case-by-case basis, whether residues on foliage data (OCSPP 850.3030) previously submitted by a pesticide registrant on specific formulations are acceptable and sufficient to permit the RT25 exception. Registrants with existing product-specific RT25 data may cite these data and request this exception be applied to their specific product. Acute Risk Mitigation Label Language for Products with Demonstrated Low Residual Toxicity If acceptable product-specific toxicity of residues on foliage data (OCSPP 850.3030 19 ) are submitted and indicate an RT25 value of 6 hours or less (RT25 <6 hrs.), then the acute risk mitigation language can be amended to the following: FOR FOLIAR APPLICATIONS OF THIS PRODUCT TO A CROP WHERE BEES ARE UNDER CONTRACT TO POLLINATE THAT CROP: This product has a Residual Toxicity time of <6 hours (RT25 <6 hrs.). Foliar application of this product is prohibited to a crop from onset of flowering until flowering is complete when bees are under contract for pollination services to that crop unless: (i) (ii) The application is made to prevent or control a threat to public and/or animal health as determined by a state, tribal, authorized local health department or vector control agency; OR, The application is made in the time period between 2 hours prior to sunset and 8 hours prior to sunrise. 3.3.2 Analysis of Impacts and Flexibility for Applications to Certain Crop Types The EPA received numerous comments on the potential adverse economic impacts to certain crops from the Proposed Acute Mitigation Strategy. To understand the potential economic impacts from this effort, the EPA conducted its own analysis, Impacts Estimates from Proposed 18 USEPA 2012. Ecological Effects Test Guidelines OCSPP 850.3030: Honey Bee Toxicity of Residues on Foliage. Office of Chemical Safety and Pollution Prevention (7101). EPA 712-C-018. January 2012. 19 USEPA 2012. Ecological Effects Test Guidelines OCSPP 850.3030: Honey Bee Toxicity of Residues on Foliage. Office of Chemical Safety and Pollution Prevention (7101). EPA 712-C-018. January 2012. 16

and Revised Pollinator Labeling for Representative Blooming Agricultural Crops Utilizing Commercial Pollination Services, (USEPA, January 2017). The EPA examined the potential impacts (i.e., cost to growers and potential yield impacts) of its acute risk mitigation effort under two general scenarios: Scenario # 1: if all acutely toxic active ingredients (i.e., those with an LD50 < 11 µg/bee, the hazard criterion of the Proposed Acute Risk Mitigation Strategy) were unavailable during bloom; and Scenario # 2: if pesticide uses exceeding the acute risk LOC 0.4 (i.e., the criterion as revised in this Policy) were unavailable during bloom. While comments submitted to the EPA were crop-specific, the EPA conducted its analysis by identifying representative crops from different crop groups, which served as surrogates for the larger number of crops within that group. For example, the EPA examined apples (East Coast and West Coast) as a surrogate for pome and stone fruits due to the general similarities of target pest groups and substitution choices. For the cucurbit crops, the EPA examined several crops including cantaloupes, cucumbers, pumpkins, and squash. In general, it is expected that under any new pest management scenario, growers may incur impacts in yield reductions, reduced quality, or increased costs if pest control is compromised by switching to different pest management systems. By taking an approach of looking at representative crops, the EPA attempted to understand the broad economic implications of this effort. When conducting its analysis, the EPA identified, for the representative crops, the bloom-time applications and target pests associated with those applications. To estimate impacts from the Proposed Acute Risk Mitigation Strategy (scenario # 1), the EPA assumed that products that were either moderately or highly toxic to bees on an acute contact exposure basis were not available and that alternative compounds (that were not moderately-highly toxic to bees) would be used. With this information, the EPA estimated any changes in pest management costs, and estimated impacts to yields. To estimate impacts from its revised quantitative risk-based approach (scenario # 2), the EPA went back to the list of compounds applied at bloom and determined which or whether any would not be available based on exceeding the acute risk LOC of 0.4. If the identified compounds all exceeded the acute risk LOC of 0.4, the EPA then looked for alternative products that did not exceed the acute risk LOC of 0.4. Again, with this information, the EPA estimated any changes in pest management costs, and estimated impacts to yields. The EPA employed proprietary market research data, U.S Department of Agriculture s National Agricultural Statistics Service data, state agricultural extension guides, and where necessary, other publically available information. While the EPA is aware of scenarios where growers may use their own bees or rely, in part or in whole, upon native bees for pollination, the EPA s analysis only focused on scenarios where managed bees are contracted for pollination services. Under Scenario #1, the EPA estimated that increased costs to growers could potentially be significant and potential yield losses could also be expected. Increased pest management costs ranged from unknown to approximately $100/acre. While yield losses were not estimated quantitatively for all crops, the EPA was able to determine whether expected impacts on yield was low, medium, or high. Based on this analysis, the EPA determined that most crops/crop 17

groups examined under the Proposed Acute Risk Mitigation Strategy were likely to see high impacts if all moderately to highly toxic active ingredients were prohibited during bloom. Under Scenario #2, the EPA determined that some alternative effective active ingredients would remain available to growers during bloom. With the availability of certain moderately or highly toxic alternatives, the expected increased pest management costs for all crops/crop groups are lower. While estimates still range from unknown to approximately $100/acre, under the revised Tier 1 acute risk-based approach, expected yield losses are anticipated to be much lower than under the Proposed Acute Risk Mitigation Strategy. The EPA found, however, that even under the revised quantitative risk-based approach, uncertainty in yield loss and therefore potential significant impacts persist for cucurbit crops, strawberries, sunflowers, avocado, and crops grown for seed, which are crops that have indeterminate blooming periods. On the whole, the EPA s analysis revealed that the magnitude of projected impacts is driven by the likelihood of yield losses. While pesticide substitution costs can be significant for some crops, these impacts are dwarfed by any potential loss of crop yield (or significant reductions in crop quality) that would result from the inability to control specific pests during bloom. The EPA s analysis concluded that yield losses under both scenarios are likely for the crops with long periods of indeterminate bloom, and on the whole, extended bloom times are the best predictor of high impacts driven by yield losses. Given the greater potential impacts of this effort on certain crops, (i.e., those crops the EPA examined with indeterminate bloom periods), the EPA reasons that greater flexibility for growers to manage pests, in the form of exceptions to the acute risk mitigation language may be appropriate for crops with indeterminate bloom periods and for crops grown for seed. Indeterminate blooming crops include crops that bloom either continuously or intermittently for multiple weeks and/or for most of the crop s growing season. See Appendix C for a list of crop groups and example crops that have indeterminate bloom and may use bees under contract for pollination. Appendix C also notes crops that may be grown for seed and therefore typically use bees under contract for pollination. Examples of these crops include: Crops grown for seed, such as groundcovers, forages, oilseed, and fruit/vegetable crops. Strawberries Cucurbits (such as melons, cucumbers, squash, pumpkins) Oilseed crops (including sunflower) Avocado The EPA has attempted to capture the wide range of commercial agriculture in its impacts analysis and this Policy. The EPA acknowledges that there may be crops it has not considered in its analysis that may fit the characteristics of an indeterminate blooming crop, and/or crops that may experience unforeseen yield losses that are disproportionately adverse to their production system due to this Policy. The EPA will consider, on a case-by-case basis, extending the greater flexibility (e.g., time and temperature) discussed in this Policy to those crops as well. The EPA also recognizes that the specific scenarios that result in high impacts to growers could change as new pest pressures emerge and the availability of alternatives change. As new scenarios emerge, 18

the EPA will consider those on a case-by-case basis as well as whether any modifications in this Policy are appropriate. Exception for Evening Applications While bees may forage over a broad range of temperatures and environmental conditions, honey bees tend to forage during specific times when flowers are prone to releasing pollen and/or nectar; foraging for pollen or nectar generally does not begin until temperatures reach 12 14 o C (54 57 o F), and forage flights are generally correlated with greater light intensity 20. While not always the case, such conditions tend to occur during the day but after the early morning hours and before the late evening hours. In previous efforts to mitigate pollinator risk from the nitroguanidine neonicotinoids (2013) 21, the EPA also used application timing as a way to protect pollinators while ensuring that farmers have tools for crop protection. In that effort, the EPA permitted application of the nitroguanidine neonicotinoids if the application was made after sunset. In response to this mitigation strategy, as noted above, aerial applicators and others informed the EPA that depending upon the topography of an area, night-time applications can be dangerous and therefore not a feasible option for growers to protect their crops. The EPA s rationale to widen that application window, by permitting applications to begin 2 hours prior to sunset, addresses this point and EPA believes that a 2-hour pre-sunset provision is applicable for scenarios involving indeterminate blooming crops. Therefore, for indeterminate blooming crops only, the EPA will allow application of acute risk pesticide products from two hours prior to sunset until sunrise at the target site. Exception for Applications in Cool Weather When the EPA worked to reduce potential risk from to the neonicotinoids, it also identified an option of permitting applications under cool temperatures, specifically when the temperature at the application site was 55 o F or less. The EPA based this temperature cut-off on both anecdotal information, but also on empirical information that indicates that 55 o F was an approximate temperature below which bee activity began to decrease 22. However, comments from beekeepers (on the 2014 neonicotinoid language), indicated that a 55 o F cut-off may be too high as bees will forage at temperatures at or around this temperature. Therefore, to increase protection for pollinators, but to continue to provide flexibility to growers, the EPA will continue to use a temperature threshold but will lower it to 50 o F. Therefore, for indeterminate blooming crops, the EPA will allow application of acute risk pesticide products when the temperature at the application site is 50 o F or less. 20 Winston, M. L. 1987. The Biology of the Honey Bee. Harvard University Press, Cambridge, MA ISBN 0-674- 07409-2 21 Nitroguanidine neonicotinoids include: imidacloprid, thiamethoxam, clothianidin and dinotefuran 19